Citation Nr: 0713795
Decision Date: 05/10/07 Archive Date: 05/25/07
DOCKET NO. 04-33 251 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky
THE ISSUES
1. Entitlement to an initial disability rating in excess of
10 percent for folliculitis/chloracne.
2. Entitlement to an effective date prior to November 18,
1996, for the award of service connection for
folliculitis/chloracne.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W. Yates, Counsel
INTRODUCTION
The veteran served on active duty from August 1968 to August
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Louisville, Kentucky.
The issue of an increased initial disability rating for
folliculitis/chloracne is addressed in the Remand portion of
the decision below and is remanded to the RO via the Appeals
Management Center in Washington, DC.
FINDING OF FACT
On November 18, 1996, the RO received the veteran's initial
claim for entitlement to service connection for a skin
disorder, secondary to his inservice exposure to Agent
Orange.
CONCLUSION OF LAW
The criteria for an effective date prior to November 18,
1996, for the grant of service connection for
folliculitis/chloracne have not been met. 38 U.S.C.A. § 5110
(West 2002); 38 C.F.R. § 3.400 (2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA has certain notice and assistance requirements. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2006). Upon receipt of a substantially complete
application for benefits, VA must notify the claimant what
information or evidence is needed in order to substantiate
the claim and it must assist the claimant by making
reasonable efforts to get the evidence needed. 38 U.S.C.A.
§§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The RO's letters,
and supplemental statements of the case, advised the veteran
of the foregoing elements of the notice requirements. See
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting
that a VCAA defect may be cured by issuance of a fully
compliant notification followed by a re-adjudication of the
claim). Thus, the Board finds that the content requirements
of the notice VA is to provide have been met. See Pelegrini
v. Principi, 18 Vet. App. 112, 120 (2004).
Further, the Board finds that any defect with respect to the
timing of the notice requirement was harmless error. This
case arises from the veteran's initial claim filed in
November 1996, years before the enactment of the Veterans
Claims Assistance Act of 2000. Although complete notice may
not have been provided to the appellant prior to the initial
adjudication herein, the appellant has not been prejudiced
thereby. The content of the notice subsequently provided to
the appellant fully complied with the requirements of 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's
duty to notify, and the appellant has been provided with
every opportunity to submit evidence and argument in support
of his claim, to respond to VA notices, and otherwise
afforded a meaningful opportunity to participate effectively
in the processing of his claim.
In addition, the duty to assist the appellant has also been
satisfied in this case. The veteran's service medical
records, VA medical treatment records, and identified private
treatment records have been obtained. 38 U.S.C.A. § 5103A;
38 C.F.R. § 3.159. The Board further notes that the facts in
this matter are not in dispute. The veteran is seeking an
earlier effective date for the award of service connection
for folliculitis/chloracne. Specifically, he claims that the
effective date should the date of his return from Vietnam,
but does not allege that he filed a claim for service
connection for a skin disorder prior to November 18, 1996.
Finally, there is no indication in the record that additional
evidence relevant to the issues being decided herein is
available and not part of the record. See Pelegrini v.
Principi, 18 Vet. App. 112 (2004).
As there is no indication that any failure on the part of VA
to provide additional notice or assistance reasonably affects
the outcome of this case, the Board finds that any such
failure is harmless. See Mayfield v. Nicholson, 20 Vet. App.
337 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
Historically, the veteran served on active duty in the Army
from August 1968 to August 1970, including service in the
Republic of Vietnam from January 1, 1969 to December 31,
1969.
On November 18, 1996, the veteran filed a claim for
entitlement to service connection for a skin disorder,
secondary to inservice exposure to Agent Orange. There is no
document in the claims folder which is a formal or informal
claim seeking service connection for a skin disorder prior to
this date. A VA examiner in September 2000 found that the
veteran had chloracne that was "probably due to exposure to
Agent Orange in Vietnam." Thereafter, in August 2002, the
RO issued a rating decision which granted service connection
for folliculitis/chloracne, secondary to the veteran's
inservice exposure to herbicide agents (including Agent
Orange), assigning a 10 percent disability rating, effective
from November 18, 1996. The veteran has appealed this
decision seeking an effective date prior to November 18,
1996, for the award of service connection for
folliculitis/chloracne.
The effective date of an evaluation and award of compensation
based on an original claim is the date of receipt of the
claim or the date entitlement arose, whichever is later. 38
U.S.C.A. § 5110; 38 C.F.R. § 3.400. A claim is defined as a
formal or informal communication in writing requesting a
determination of entitlement, or evidencing a belief in
entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2006). An
informal claim is any communication or action indicating
intent to apply for one or more benefits. 38 C.F.R. §
3.155(a) (2006).
After reviewing the evidence of record, the Board finds that
the veteran's initial claim for service connection for
folliculitis/chloracne was received by the RO on November 18,
1996. The provisions of 38 U.S.C.A. § 5110(a) and 38 C.F.R.
§ 3.400 are clear that an award of service connection "shall"
not be earlier than the date of receipt of application
therefor. Here, the claim received on November 18, 1996, was
the earliest dated submission by the veteran evidencing an
attempt to apply for this benefit, and there are no documents
that can be construed as a claim prior to this date. See 38
C.F.R. §§ 3.1, 3.155. Accordingly, the date of receipt of
the veteran's claim, November 18, 1996, is the appropriate
effective date for service connection under the provisions of
38 U.S.C.A. § 5110. See also 38 C.F.R. § 3.400.
The veteran argues that service connection for
folliculitis/chloracne effective should be granted from the
day he returned from Vietnam. If a claim is received within
one year after separation from service, the effective date of
an award of service connection shall be the day following the
veteran's separation from active service or the date
entitlement arose; otherwise, the effective date shall be the
date of receipt of claim, or date entitlement arose,
whichever is later. 38 C.F.R. § 3.400(b)(ii)(B)(2).
Accordingly in the instant case, there is no legal basis to
validate his argument. As a claim was not received within a
year after the veteran's service separation, the effective
date of the award of service connection for a skin disorder
can be no earlier than the date of receipt of the claim, in
this case, November 18, 1996. 38 U.S.C.A. § 5110; 38 C.F.R.
§ 3.400.
ORDER
An effective date prior to November 18, 1996, for the award
of service connection for folliculitis/chloracne is denied.
REMAND
The veteran is seeking an initial disability rating in excess
of 10 percent for his service-connected
folliculitis/chloracne.
After reviewing the veteran's claims folder, the Board
concludes that additional development is necessary.
Specifically, the veteran's representative has argued that
the current medical evidence of record is insufficient for
purposes of rating the veteran's service-connected
folliculitis/chloracne. Under these circumstances, the RO
should schedule the veteran for a VA examination to determine
the severity of his service-connected folliculitis/chloracne.
This examination should be conducted with special
consideration being given to the rating criteria from both
the current and prior versions of Diagnostic Code 7806, which
changed during the course of this appeal. Compare 38 C.F.R.
§ 4.118, Diagnostic Code 7806 (2002) with 38 C.F.R. § 4.118,
Diagnostic Code 7806 (2006).
Accordingly, the case is remanded for the following actions:
1. The RO must contact the veteran to
provide him an opportunity to identify
all VA and non-VA medical providers who
have treated him for his
service-connected folliculitis/chloracne
since March 1999. The RO must then
attempt obtain copies of the related
medical records that are not already in
the claims folder. All attempts to
secure this evidence must be documented
in the claims file by the RO. If, after
making reasonable efforts to obtain named
records the RO is unable to secure same,
the RO must notify the veteran and (a)
identify the specific records the RO is
unable to obtain; (b) briefly explain the
efforts that the RO made to obtain those
records; and (c) describe any further
action to be taken by the RO with respect
to the claim. The veteran must then be
given an opportunity to respond.
2. Thereafter, the veteran must be
afforded an appropriate examination to
determine the severity of his
folliculitis/chloracne. The claims
folder must be made available to the
examiner to review in conjunction with
the examination. The examiner must
describe all symptomatology due to the
veteran's service-connected skin
condition. Specifically, the examiner
must state the percentage of the
veteran's body that is affected by his
service-connected skin condition, whether
the affected area(s) is (are) exposed,
and if so by how much, and whether the
veteran's service-connected skin
condition is or has been treated with
topical or systemic therapies, such as
corticosteroids or other
immunosuppressive drugs, and to what
extent time period in the last 12 months.
A complete rationale for any opinions and
conclusions expressed must be included in
the examination report. The report
prepared should be typed.
3. The RO must notify the appellant that
it is his responsibility to report to the
examination and to cooperate in the
development of the claim. The
consequences for failure to report for a
VA examination without good cause may
include denial of the claim. 38 C.F.R.
§§ 3.158, 3.655 (2006). In the event
that the appellant does not report for
the aforementioned examination,
documentation must be obtained which
shows that notice scheduling the
examination was sent to the last known
address. It must also be indicated
whether any notice that was sent was
returned as undeliverable.
4. The RO must then review and re-
adjudicate the veteran's claim for
entitlement to an initial skin disability
rating in excess of 10 percent. The RO
must consider the revised provisions of
38 C.F.R. § 4.118, pertaining to the
evaluation of skin conditions. See 67
Fed. Reg. 49,590-599 (July 31, 2002). If
any such action does not resolve each
claim to the veteran's satisfaction, the
RO must provide the veteran and his
representative a supplemental statement
of the case and an appropriate period of
time must be allowed for response.
Thereafter, the case must be returned to
this Board for appellate review.
No action is required by the veteran until he receives
further notice; however, he may present additional evidence
or argument while the case is in remand status at the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
______________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs